Chief Justice Rehnquist gave a speech in Richmond this week on the importance of an independent judiciary, at an event honoring the judicial career of former Virginia Supreme Court Chief Justice Harry Carrico, as reported here.

In Virginia Beach, a pizza delivery driver was convicted of reckless driving for an accident which killed two children, according to this report, which also notes that a $15 million civil suit has been filed.

In one Virginia county, parents are pressing to see the school system's emergency response plans, according to this report. The school board claims that the plans are exempt from disclosure under FOIA.

The Washington Times reports here on the "flag flap" in Richmond concerning the City's directive that a city employee should remove a large American flag from his work space. The private flag was replaced with a city-owned flag, following the intervention of Attorney General Kilgore and Republican Congressman Eric Cantor.

W.D. Va. prosecutors have decided to reindict and retry Richard Burrow, the D-Day fundraiser, using the testimony of the lawyer who represented the D-Day Foundation, as reported here and here. The lawyer did not testify in the first trial and has entered into an agreement to waive his Fifth Amendment privilege in exchange for not being prosecuted. Earlier in the week, Judge Turk ruled that Burrow must be tried within 10 days or he would dismiss the case without prejudice.

This week, the Attorney General's office notified the Virginia Tech Board that its resolution on campus speech is unconstitutional, as reported here and here. The Tech newspaper had this article with the headline "Kilgore overturns extremist speaker ban."

Also, the Board decided to reconvene to reconsider its earlier resolution to eliminate race as a consideration in admissions, as reported here and here

Governor Warner eliminated the statement of purpose requirement for requesting public records contained in a new privacy law passed this year, according to this report. The governor also signed measures reforming the State Board of Medicine, as reported here, adding benefits for National Guard members (as reported here and here), and proposed more money in the budget for wrongfully convicted Marvin Anderson, as reported here. The Governor also pardoned a Suffolk man wrongfully imprisoned for 20 years but exonerated by DNA evidence, as reported here and here.

Earlier in the week, the governor signed the wine bill, as described here, and the new drunk driving law, as reported here. The governor also signed a new law to make VDOT more accountable, as reported here and here.

On Saturday, the governor revised legislation dealing with illegal aliens, as reported here.

In this opinion issued on Friday, Judge Wilson of the W.D. Va. granted summary judgment against the "reverse discrimination" claims of three white Roanoke police officers, who claimed that they were denied promotion because of race in favor of a less qualified African-American woman, who is a personal friend of the African-American police chief. The court observed that white males often as not had been the beneficiaries rather than the victims of the kinds of irregularities in the promotion process cited by the plaintiffs.

Also posted on the W.D. Va. website this week was this opinion by Judge Michael denying a defendant's motion to withdraw his guilty plea.

On Tuesday, in a lengthy and complex opinion, a panel including Judges Niemeyer, Motz, and King affirmed a federal death penalty conviction, relating to a murder in the national forest near Asheville, NC. Among other issues was the defendant's claims of double jeopardy and vindictive prosecution, as he had entered a guilty plea in state court and been sentenced to 31 years for the same offenses, unaware of the possibility of a federal prosecution some years later. Another issue was the admission into evidence of a rambling television interview given by the defendant, as rebuttal evidence in the sentencing phase of the case to his mother's testimony about his life and character. Also on Tuesday another panel affirmed in this opinion the conviction of a defendant also known as "cock-eyed Carl."

On Wednesday, in this published opinion, a Fourth Circuit panel considered the question of "whether a person convicted of a [crime of domestic violence] but never stripped of his civil rights under state law is thereafter subject to prosecution under 18 U.S.C. § 922(g)(9)." Judge Wilkinson and Senior Judge Hamilton said yes, Judge Widener said no, with a fairly scathing dissent. Judge Widener's opinion contains this Alice in Wonderland reference: "Upon first glance, it might seem that the majority’s reading is correct: construing the word "restored" over-literally, the defendant’s civil rights were never revoked, therefore, there was nothing to restore and the restoration exception is inapplicable as it pertains to him. But this is like the offer of 'more' tea to Alice who yet had had none. See Alice in Wonderland, Carroll, Grossett & Dunlop, 1980, p. 79." Also on Wednesday by this per curiam opinion, the Court affirmed summary judgment against the plaintiff who had sued the Roanoke Airport for sex discrimination.

On Thursday, in this unpublished opinion, the Fourth Circuit affirmed a Maryland district court's dismissal of a declaratory judgement action over insurance coverage for a dog-bite claim in favor of proceedings before the state insurance administrative agency. In another opinion, the Court sanctioned someone named Barbara Bush $500 for bringing a frivolous pro se appeal.

On Friday, the Fourth Circuit affirmed in this opinion the ruling of E.D. Va.'s Judge Spencer granting summary judgment in a copyright and Lanham Act case where the plaintiff could not prove damages. In this unpublished opinion, the Fourth Circuit affirmed judgment as a matter of law for Wal-mart in an E.D. Va. case about plaintiff's altercation with a store employee.

Wednesday, March 19, 2003

The NY Times has this report on a challenge in the U.S. Supreme Court to state laws prohibiting sodomy. Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.

The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.

Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.

The Roanoke Times reports here that Judge Turk of the W.D. Va. will rule on Thursday whether to allow the retrial of Richard Burrow on charges concerning his fundraising for the Bedford D-Day memorial.

This article describes the county-wide wireless telecommunications project in Dickenson County. Here is the text of the Wireless Service Authority legislation sponsored by Delegate Bud Phillips and referenced in the article.

Monday, March 17, 2003

The United States Supreme Court granted on March 10 the petition for certiorari in the W.D. Va. chapter 7 attorneys' fee case, as shown here and here, under the name of John M. Lamie v. U.S. Trustee. Mr. Lamie, the Abingdon bankruptcy attorney, is represented by Thomas C. Goldstein, whose claims to fame include this Supreme Court blog. Mr. Goldstein has argued a number of cases before the Supreme Court and was the winning counsel in this case (involving criminal procedure) the Supreme Court decided on March 4. decided on March 4.

The background of Mr. Lamie's case involves a number of interesting issues. The bankruptcy case was filed under Chapter 11 and the client gave Mr. Lamie a $5,000 "retainer," an amount deposited as pre-paid fees. On the motion of the U.S. trustee, the Bankruptcy Court converted the case to Chapter 7. When Mr. Lamie made an application to be paid, the U.S. Trustee Ms. Garber objected to his being paid with the money on deposit.

The Bankruptcy Court by Judge Stone ruled partially Mr. Lamie's favor, rejecting the idea that pre-petition retainers were assets of the estate, but held that he could not collect post-conversion fees. The District Court by Judge Jones affirmed, in a published opinion. Eventually, the parties reached a settlement and as a condition of that agreement, they tried to get the District Court to withdraw its opinion, but Judge Jones refused (in this opinion), so both parties appealed. Judge Jones' refusal to withdraw his opinion is interesting in itself, and not the only time he has made such a decision, the other being this case. The judge's concerns seem particularly appropriate in litigation where the parties include a public official such as the U.S. Trustee, who (at least in theory) is in a position to litigate the same issue over and over, settling cases and having bad precedents withdrawn, until she (or he) gets the ruling she wants.

The Fourth Circuit affirmed in part and reversed in part in a split decision, rejecting Mr. Lamie's arguments on the issue of whether Congress changed the language of the Code in 11 U.S.C. 330(a) by mistake in eliminating a provision for attorneys' fees to counsel for Chapter 7 debtors. The idea of what amounts to a typographical omission in the U.S. Code raises all kinds of issues - like when should a court even begin to look for missing language if the meaning of what remains is plain on its face. Judge Niemeyer and Judge Karen Williams went with the "plain language" of the statute, while acknowledging that there are some good reasons to believe that Congress made the mistake Mr. Lamie is claiming. Judge Blaine Michael dissented on the statutory construction issue, siding with the "scrivener's error" theory. In deciding the case, the panel acknowledged that any decision it made would widen the split in the circuits on this point. Now, the Supreme Court will resolve the conflict.

News accounts of the Lamie case include this one from a newspaper in Utah.

Closing argument are underway in a N.C. trial court in the case of a Virginia couple seeking to recover for injuries sustained as the result of the collapse of the pedestrian bridge over U.S. Route 29 at the Lowe's Motor Speedway outside Charlotte, according to this report. Lowe's Motor Speedway is owned by Speedway Motor Sports, the parent company of the Bristol Motor Speedway, where this week's NASCAR events will occur. 160,000 fans will attend this weekend's Winston Cup race, and the traffic controllers hope to clear the roads within 3 hours after the event, as stated here.

The eyewitness who claims to have reported the D.C. area snipers at the rest stop where they were arrested may never get any of the published reward for their arrest and capture, according to this report.

The Kingsport Times reports here (registration required) that environmental critics of the U.S. Forest Service's management plan for the Jefferson National Forest are making noise even before actually reading the draft plan, which is available here. The merits of the plan may be a matter of perspective - thus, the headline of this article was "Plan calls for more logging . . . " while the headline for an earlier article in the Richmond paper was "Forest plan cuts logging."

Sunday, March 16, 2003

This editorial concludes that Virginia ought to allow further testing of the DNA evidence in the Roger Coleman murder case. Coleman was convicted in Buchanan County, sentenced to death, and executed after his habeas corpus efforts were denied. Judge Nicholoas Persin presided over the trial, Judge Glen Williams heard the federal habeas petition. The case is the subject of this book by John Tucker, spouse of William & Mary law professor Jayne Barnard. As reported here, a New Jersey group has petitioned Governor Warner to allow further DNA testing.

Mr. Coleman was convicted in 1982 and executed in 1992. In denying habeas relief, Judge Williams observed that post-conviction DNA analysis by noted expert Edward Blake (best known for his role in the O.J. case) in 1990 added to, rather than contradicted, the evidence of Coleman's guilt. Dr. Blake and others now contend that further testing of samples retained by Blake using more modern techniques would prove that Coleman was innocent, as reported here.

Lawyers from the University of Michigan admissions case previewed their arguments before law students in Charlottesville on Saturday, as reported here.

Critics of this month's decision by the Virginia Tech Board of Visitors to eliminate race as a consideration in student admissions have claimed that they should have deferred acting until the Supreme Court decides the Michigan case. At the heart of the Michigan case is language from the opinion by Justice Powell in the Bakke case decided in 1978. Justice Powell opined that race could be considered in pursuit of the constitutionally-permissible objective of the pursuit of diversity, but the question (as described here and here and here) is whether and to what extent his views on the point are the holding of the Court, since there were many different opinions and the votes were all over the map. Nevertheless, lawyers and courts have acted on Justice Powell's opinion as if it was the law.

That the law is not clearly established was indicated in part by an exchange in oral argument before the Supreme Court last November, with Professor Chemerinsky arguing what was "clearly established" law in another context, as recorded here.

Stepping back a bit, there are still teachers living who remember the first day of integrated schools in this area, as demonstrated in this interview with Harriet Debose of Abingdon.

A Richmond law firm noted for representing employees has joined with the AARP and filed suit against the Capital One credit card company on behalf of dozens of plaintiffs claiming age discrimination, according to this report.

The Richmond Times-Dispatch recounts the story of Marvin Lamont Anderson as proof of the fallibility of eyewitness identification, in this report. The General Assembly voted $1.2 million in compensation for Anderson after DNA evidence exonerated him.

Critics of the recent decisions by the Virginia Tech board of Visitors are wondering whether board members are using their position for somebody's political gain, rather than pursuing the best interestings of the school, according to this report.

A Newport News Republican is claiming that funding for a public defender's office in his area was denied because a law firm that gets state money for court-appointed work includes two senators, according to this report.